IN THE CASE OF:  	  

		BOARD DATE:  18 August 2015	  

		DOCKET NUMBER:  AR20150008950 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military personnel records by:

	a.  removal of the annual DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 19 October 2010 through 18 October 2011 (hereafter referred to as the contested NCOER) from his Official Military Personnel File (OMPF) and the period declared nonrated time; and

	b.  consideration for promotion to sergeant first class (SFC)/pay grade E-7 by a Standby Advisory Board for Fiscal Year 2013 and subsequent years.

2.  The applicant states, in effect, the basis for the appeal is both administrative and substantive error of the contested NCOER.

	a.  He states the rater, Master Sergeant (MSG) G____ W. R____, for the contested NCOER was not his rater for the entire rating period.  He did work for MSG R____ for 3 months from October through December 2010, but MSG R____ did all in his power to stay away from him during that period.

	b.  He states he worked for MSG A____ J. D____ from January 2011 through October 2011 and MSG D____ confirms this in a sworn statement.

	c.  He brought this discrepancy to the attention of both the senior rater and reviewer.  However, they indicated that since there were no supporting documents to show otherwise, they believed MSG R____ to be the correct rater.

	d.  The applicant addresses specific items of issue in the contested NCOER, as follows:

		(1)  He states MSG R____ never counselled him during the period of the report and backdated counselling statements that were written in 2012.  The applicant signed the statements on 6 February 2012 to show MSG R____ tried to falsify documents.

		(2)  He received ratings of "No" for the Army Values of "Loyalty, Respect, Honor, and Integrity" with bullet comments that are untrue.  He offers statements that refute the ratings.

		(3)  He received ratings of "Needs Improvement" for the Values/NCO Responsibilities of "Leadership" and "Responsibility and Accountability" with negative comments for the traits.  He offers statements that refute the ratings.

   	(4)  He received an overall rating of "Marginal" with three negative bullet comments.  He offers examples of his performance that refute the ratings.  In addition, he challenges the appropriateness of the three positions the rater listed in which the applicant could best serve the Army.

3.  The applicant provides the following documents:

* a three-page self-authored statement (summarized above)
* three DA Forms 2166-8 (NCOERs)
* four DA Forms 4856 (Developmental Counseling Forms)
* DA Form 636 (Recommendation for Award)
* DA Form 1059 (Service School Academic Evaluation Report)
* seven letters of support

CONSIDERATION OF EVIDENCE:

1.  After having prior honorable enlisted service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 19 June 2006.  Through a series of reenlistments he has continued to serve in the Regular Army.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 March 2009 in military occupational specialty (MOS) 18B (Special Forces Weapons Sergeant (SGT)).

2.  A review of his records revealed a copy of the contested NCOER is filed in the performance folder of the applicant's OMPF.  It shows he was assigned to Company C, 4th Battalion, 3rd Special Forces (SF) Group (Airborne) (SFG (A)), Fort Bragg, NC.  It also shows in:

	a.  Part I (Administrative Data):

* block h (Period Covered) – 19 October 2010 through 18 October 2011
* block i (Rated Months) – 12
* block j (Non-Rated Codes) – no entry

	b.  Part II (Authentication) the rating chain as:

* Rater – MSG G____ W. R____, Detachment Operations NCO
* Senior Rater – Captain (CPT) J____ C. G____, Detachment Commander
* Reviewer – Major (MAJ) K____ G. S____, Company Commander

	c.  Part III (Duty Description):

* block a (Principal Duty Title) – Senior Weapons SGT
* block d (Areas of Special Emphasis) –

* Pre-Deployment Conduct
* CJSOTF-A LNO (Combined Joint Special Operations Task Force-Alpha Liaison Officer)
* Detached Advanced Operating Base Weapons SGT

* block f (Counseling Dates) –

* Initial – 1 November 2010
* Later – 15 December 2010, 28 April 2011, 25 July 2011

	d.  Part IV (Army Values/Attributes/Skills/Actions – Rater):

		(1)  block a (Army Values), line 1 (Loyalty), line 3 (Respect/Equal Opportunity/Equal Employment Opportunity), line 5 (Honor), and line 6 (Integrity), are marked "No"; he received "Yes" ratings for the remaining Army Values and the bullet comments, as follows:

* misled Detachment leadership in order to avoid duties and to sleep in
* repeatedly undermined Detachment leadership to avert blame for consistent poor performance
* only excels while under constant supervision and is facing potential corrective actions

		(2)  block b (Values/NCO Responsibilities), block b (Competence), is marked "Needs Improvement (Some)" and shows the bullet comments:

* made repeated phone calls to STF-S (Special Task Force-South) Day Battle Captain airing unprofessional statements about the Detachment leadership as CJSOTF-A LNO
* served on the AOB in support of operations for 6 x ODAs (Operational Detachment Alpha), 1 x SEAL (Sea Air Land) PLT (Platoon), and ODB (Operational Detachment Bravo) during OEF XXVII (Operation Enduring Freedom 17)
* conducted over 15  x TGMs (Tactical Ground Movements) through highly contested areas of the Kandahar Province to deliver logistical support to multiple Village Stability Platform (VSP) Sites

		(3)  block d (Leadership), is marked "Needs Improvement (Much)" and shows the bullet comments 

* counseled numerous times prior to combat deployment for failure to set the example as a Senior Weapons Sergeant and NCO due to continued observed laziness
* reprimanded by the Detachment Operations Sergeant for blaming (his) subordinate as well as another team member for failure to complete specified pre-deployment tasks from the Commander
* misled Detachment leadership in order to justify not having to lead an organized pack-out of weapon systems for the PDSS 
* (Pre-Deployment Software Support) party's deployment

		(4)  block f (Responsibility and Accountability), is marked "Needs Improvement (Some)" and shows the bullet comments:

* failed to develop a detachment Master Arms Room List prior to deployment, of which the Junior (MOS) 18C had to produce in a condensed, stressful timeline
* failed to properly inspect and ensure correct functionality to combat essential equipment prior to deploying to OEF XVII; specifically the Mk47 grenade launcher
* proved responsible in the synchronization, loading, and delivery of over 500 tons of mission critical logistical support to multiple VSPs

		(5)  He received "Success" ratings for the two remaining Values/NCO Responsibilities in block c (Physical Fitness and Military Bearing) and block e (Training).

	e.  Part V (Overall Performance and Potential):

		(1)  the rater marked "Marginal" with the bullet comments:

* do not promote to SFC
* do not send to SLC (Senior Leader Course) until Soldier demonstrates the ability to consistently exercise the Army's Values
* send to challenging leadership schools immediately
* performed Soldier tasks well in combat in a supporting role

		(2)  the rater listed three positions in which the rated NCO could best serve the Army at his current or higher grade:

* SFODA Senior Weapons Sergeant
* Company Weapons Sergeant
* Battalion Arms Room Noncommissioned Officer in Charge (NCOIC)

		(3)  The senior rater marked "Fair (4)" for overall performance and "Fair (4)" for overall potential for promotion and/or service in positons of greater responsibility.

	f.  The reviewer indicated with an "X" in Part II, block d, that he concurred with the rater and senior rater evaluations.

	g.  The NCOER was digitally signed by the:

* rater on 26 January 2012
* senior rater on 30 January 2012
* reviewer on 31 January 2012
* rated NCO (applicant) on 9 February 2012

3.  A review of the applicant's OMPF failed to reveal evidence that he appealed the contested NCOER to the Department of the Army Suitability Evaluation Board (DASEB), U.S. Army Human Resources Command, within the 3-year time restriction on the submission of substantive appeals.

4.  In support of his request the applicant provides the following documents.

	a.  An NCOER covering the period 19 October 2009 through 18 October 2010 that shows the applicant was rated for his performance as Weapons Sergeant, Company C, 4th Battalion, 3rd SFG(A), Fort Bragg, NC.  The rater, MSG D____ R. L____, evaluated his overall potential for promotion and/or service in positons of greater responsibility as "Among the Best."  The senior rater evaluated his overall performance as "Successful – 1" and overall potential for promotion and/or service in positions of greater responsibility as "Superior – 1."  It also shows the reviewer concurred with the rater and senior rater evaluations.

	b. A DA Form 638 that shows the applicant was recommended for the Bronze Star Medal (1st Oak Leaf Cluster) for the period 15 March 2011 to 1 February 2012 by the AOB Executive Officer.  The AOB and SOTF-S commanders recommended approval; the Commander, Combined Forces Special Operations Component Command-Afghanistan, downgraded the award to the Army Commendation Medal; and the award was announced in permanent orders.

	c.  Four DA Forms 4856 that show MSG G____ W. R____, Detachment Operations SGT, counselled the applicant on 1 November 2010, 15 December 2010, 28 April 2011, and 25 July 2011.

		(1)  The initial counseling session outlined general expectations and duty requirements.  It shows the applicant indicated he agreed with the information, he signed the form, and it is dated 6 February 2012.  The form does not show the signature of the counselor or the date.

		(2)  The three subsequent event-oriented counseling sessions outlined specific dates and incidents when the applicant's performance was substandard and/or violated Army Values.

		(a)  All three of the counseling sessions included a "Plan of Action."

		(b)  They show the applicant indicated he disagreed with the information, he signed the forms, and they are dated 6 February 2012.  The forms do not show the signature of the counselor or the date.

	d.  A DA Form 1059 for the period 2 April 2013 through 24 April 2013 that shows the applicant successfully completed the Special Forces SLC.

	e.  A letter authored by MSG A___ J. D____, U.S. Army (Retired), undated, that shows he was the Company Operations NCOIC from October 2010 to July 2012.   During the period January 2011 to January 2012 his unit was deployed to support OEF 17.  He states the applicant was assigned to SFODA 3435, but temporarily assigned duties as Battalion LNO with follow-on duties as Weapons SGT.  He states the applicant worked under his direct supervision from April 2011 to January 2012 and he performed with excellence and honor.

		(1)  He states that four months after the through date for the NCOER, the ODA 3435 leadership attempted to counsel the applicant for time periods that he was not physically with or performing duties for them.

		(2)  He states that a Change of Rater NCOER should have been completed for the initial 3-month period by the leadership that was directly responsible for the applicant; however, an NCOER was not completed.  He adds he completed a draft NCOER and was informed to provide it to the applicant's rater (MSG R____) as input.  He states, "(t)he working NCOER I wrote accurately portrayed (the applicant's) conduct and accomplishments from his arrival in theater, which was not accurately portrayed in the NCOER that MSG R____ wrote."  (He provided a copy of the draft NCOER to the applicant in support of his application to this Board.).

	f.  A draft NCOER (with no personal identifying information) covering the period 9 October 2010 through 8 October 2011 that shows in:

		(1)  Part II the rating chain as:

* Rater:  MSG A___ J. D____, Team SGT
* Senior Rater:  Sergeant Major (SGM) T___ M. W____, Company SGM
* Reviewer:  MAJ S___ C. W____, Company Commander

		(2)  Part III (Duty Description) –

* block a (Principal Duty Title) – SF ODB Assistant Operations SGT
* block d (Areas of Special Emphasis) –

* Company PMT (Pre-Mission Training) at AP Hill, VA
* Battalion PMT at Fort Knox, KY
* OEF XVII, Afghanistan

* block f (Counseling Dates) –

* Initial – 12 October 2010
* Later – 15 January 2011, 16 April 2011, 14 July 2011

		(3)  Part IV and Part V shows all "left" block checkmarks (i.e., maximum positive assessments) for the entire NCOER, along with favorable comments.

	g.  A Memorandum for Record (MFR), subject:  Statement of Performance (Applicant), authored by SGM T____ M. W____ on 23 August 2013 that shows ODA 3435 was attached to AOB 3230 from 10 November 2010 to 1 April 2012 for operations in support of OEF.  He noted all NCOERs were to be processed through the attached element's parent command and awards through the operational command.

		(1)  He states the applicant was assigned as a Junior Weapons SGT and that the required level of experience and competency required in the area of operations exceeded that of the applicant.  He replaced the applicant with a more senior SF NCO and Weapons SGT; however, no documents or administrative actions were completed at that time.

		(2)  He adds the applicant's performance was unobserved by his rater and senior rater.  However, the AOB 3230 Operations SGT (MSG A___ J. D____) prepared a letter of continuity outlining the applicant's duties, responsibilities, and level of performance and provided it to MSG G___ W. R____ as input to assist him in writing the applicant's NCOER.  He concludes that the contested NCOER does not accurately represent his observation of the applicant's performance.

	h.  An MFR, subject:  Evaluation Report Appeal for the period 19 October 2010 through 18 October 2011 (on behalf of applicant), authored by Command Sergeant Major (CSM) E___ A. M____ on 4 November 2013, in which he states the applicant's Company SGM confirmed to him that he had reviewed the applicant's counseling, that it was valid, and it supported the ratings.  Upon redeployment, he looked into the NCOER and asked the Company SGM for the counseling statements, but the Company SGM could not provide documentation.
The applicant provided him copies that he then presented to the Company SGM who did not address the counseling date, but stated, "if the Team SGT wrote it, then it was good enough for him."

		(1)  He states that his research led him to conclude that the counseling was false and the rating was inaccurate.  He adds that the Company SGM provided him inaccurate information, which was the basis for his original advice to the reviewer.

		(2)  He states that the rater and senior rater came to the applicant's location several times every month; however, they did not counsel the applicant.  In addition, the rater and senior rater failed to incorporate the comments and observations from the NCO and officer the applicant was actually supporting.

	i.  An MFR, subject:  Statement of Performance (for applicant), authored by MAJ S___ C. W____ on 23 August 2013, that shows ODA 3435 was attached to AOB 3230 and under his command from 10 November 2010 to 1 April 2012.  Shortly after deploying in support of OEF 17, the applicant was moved from ODA 3435 and placed directly under his command in the AOB command element until he redeployed in February 2012.  He states, based on his observations, the contested NCOER does not accurately portray the applicant's performance.

	j.  An MFR, subject:  Statement of Support (for applicant), authored by Lieutenant Colonel C____ D. P____ on 27 September 2013, that shows the applicant served under his command from November 2009 to May 2011; seven months of which are covered in the contested NCOER.  He believes the NCOER is not an accurate representation of the applicant as a Soldier.

		(1)  The Company SGM believed that the applicant's experience and knowledge would greatly enhance ODA 3435's combat effectiveness.  The applicant was transferred to ODA 3435 as the Senior Weapons SGT.  MSG R____ and the applicant had issues from the start, which were brought to the attention of the Company SGM a few weeks before the January 2011 deployment.  However, the deployment timeline precluded transferring the applicant out of the duty position.

		(2)  He believes the rating to be false and he disagrees with the assessments of both the rater and senior rater.  He states the applicant's challenge of the contested NCOER should be accepted.

	k.  A letter authored by SFC W____ S. M____, dated 29 December 2014, subject:  Evaluation Report Appeal for the period of 19 October 2010 thru 18 October 2011 (Applicant), that shows he assumed duties from the applicant as Senior Weapons SGT, ODA 3435, in February 2011.

		(1)  He states the applicant had the Master Arms Room List completed and ready, and there was no need to prepare a new one as the applicant's rater states in the contested NCOER.  He adds that the rater was incorrect in stating the applicant had not prepared all the team's equipment for the upcoming deployment.

		(2)  He adds, "MSG R____ had no supervision of (the applicant) for the entire 12 month deployment (and) never counselled him.  MSG R____ should have never been allowed to write (Applicant's) NCOER."

	l.  A memorandum authored by SFC J____ P____, dated 9 January 2015, subject:  Evaluation Report Appeal for the period of 19 October 2010 thru 18 October 2011 (Applicant), that shows he worked with the applicant from 6 January 2010 until 18 February 2011.

		(1)  He states the applicant had about two weeks to get all the ODA's weapons and armaments prepped and packed for the 4th Battalion's PMT at Fort Campbell, KY, and he designed a Master Arms Room List to facilitate the movement requirements.  In addition, the applicant was responsible for running most of the ODA's ranges, which occurred at PMT, Fort Campbell.

		(2)  During deployment to OEF 17, the applicant was immediately cut away from the team and he served under the Company SGM at the AOB level.  However, he continued to offer support and assistance to the detachment.  He opines, "(t)he applicant was the only SSG that was serving in a SFC position and when compared with his peers who were well versed at serving at that position he did not bode well; but when compared with the other SSG's serving in the detachment, (the applicant) performed at a level that was well within satisfactory."

5.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.

	a.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

	b.  The Authorized Documents list provides guidance for filing documents in the OMPF.  It shows the DA Form 2166-8 will be filed in the performance folder of the OMPF.

6.  Army Regulation 623-3, in effect at the time, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, this includes the DA Form 2166-8.

	a.  Chapter 2 (The Rating Chain), paragraph 2-17 (Review of NCOER) provides that every NCOER will be reviewed by the 1SG, SGM, or CSM and signed by an official who meets the reviewer requirements.  The reviewer is responsible for rating safeguard over watch and will ensure that the proper rater and senior rater complete the report.

	b.  Chapter 3 (Army Evaluation Principles):

		(1)  paragraph 3-14 (Rater assessment), provides that the rater will assess the performance and potential of the rated NCO using all reasonable means to prepare a fair, correct report that evaluates the NCO's duty performance, values/ NCO responsibilities, and potential.

		(2)  paragraph 3-15 (Senior rater assessment), provides that the senior rater's role is primarily to evaluate potential, over watch the performance evaluation, and mentor subordinates.  The senior rater will use all reasonable means to become familiar with the rated NCO's performance throughout the rating period and prepare a fair, correct report evaluating the NCO's duty performance, professionalism, and potential.

		(3)  paragraph 3-37 (Preparation and submission procedures), provides that the rated Soldier will always be the last individual to sign the evaluation.  The rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the APFT and height and weight data; and that he/she has seen the completed report.  If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the evaluation.

	c.  Chapter 6 (Evaluation Report Redress Program):

		(1)  section II (Commander's or Commandant's Inquiry), paragraph 6-4 (Purpose), provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to the report.  The primary purpose of a commander's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.

		(2)  section II (Evaluation Appeals), paragraph 6-7 (Policies), places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an NCOER.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER for the period 19 October 2010 through 18 October 2011 should be removed from his OMPF and the period declared non-rated because of both administrative and substantive errors.  He challenges the validity of the rating chain and the evaluations/comments of the rater and senior rater for the contested NCOER.

2.  The applicant does not provide a copy of the unit's official rating scheme for the period of service under review or any document that officially designated the NCOs/officers in his rating chain.

	a.  He acknowledges that MSG G____ W. R____ was his rater from October 2010 through December 2010 and offers statements that support his contention that MSG A____ J. D____ became his rater after he deployed to Afghanistan in January 2011.

	b.  The statements in support of his application were prepared approximately 2 years after the "Thru" date of the contested NCOER.  It is noted in the letter authored by MSG A____ J. D____, he stated the applicant worked under his direct supervision beginning in April 2011 (vice January 2011).  This is at odds with the applicant's contention and other documents he provides in support of his appeal.

		(1)  The MFR authored by SGM T____ M. W____ indicates that MSG A____ J. D____ prepared a letter of continuity on the applicant's duties, responsibilities, and level of performance and provided it to MSG G____ W. R____ as input to assist him in writing the applicant's NCOER.

		(2)   The letter authored by MSG A____ J. D____ indicates he prepared a draft NCOER and provided it to MSG G____ W. R____.  It is noted that the draft NCOER does not show the applicant as the ratee by any personal identifying formation.  In addition, it contains numerous inaccuracies/inconsistencies (e.g., an incorrect rating period (9 October 2010 through 8 October 2010) and principal duty title; the areas of special emphasis show PMTs at AP Hill, VA and Fort Knox, KY (vice Fort Campbell, KY); initial and later counseling dates (i.e., 12 October 2010 and 15 January 2011, respectively), although MSG A____ J. D____ was not the rater).  Thus, the veracity that the draft NCOER pertained to the applicant and was offered as input to the rater is questionable.

		(3)  Despite the inaccuracies in the description of the type of input (i.e., letter or draft NCOER), it is noted that both SGM W____ and MSG D____ acknowledge the input was provided to MSG R____; the rater.

	c.  Thus, the evidence is insufficient to establish an error in the rater for the contested NCOER.  In addition, the evidence of record shows both the reviewer and the applicant confirmed with their signatures the validity of the rating chain.

	d.  The dates of counseling for the contested NCOER were considered.  The dates on the counseling statements correspond with the dates on the contested NCOER.  It is acknowledged that the applicant dated the counseling statements on 6 February 2012.  It cannot be determined from the evidence of record if the applicant actually received counseling on the dates in question nor the reason(s) the counseling statements were prepared after the fact.  However, it is noted that the applicant did not make note on any of the counseling statements that the counseling did not occur on the dates of record; only that he disagreed with the substance of the event-oriented counseling.  Thus, there is an insufficient evidentiary basis to conclude the counseling did not take place.

	e.  The rater listed three positions in which he believed the applicant could best serve the Army at his current or higher grade.  Thus the applicant's contention that the positions were inappropriate is not supported by the evidence of record.

	f.  The letters of support offered by officers and NCOs in his former chain of supervision/command who opine that the contested NCOER was unjust and unwarranted is noted.  However, their subjective opinions offer insufficient evidence to invalidate the contested NCOER.

	g.  In view of all of the foregoing, a preponderance of evidence indicates the contested NCOER was prepared by the proper rating officials and that the administrative data is correct.

3.  The contested NCOER is properly filed in the performance folder of the applicant's OMPF.

4.  An evaluation report accepted for inclusion in the official file of a rated NCO's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Thus, there is insufficient evidence to refute the presumption of administrative regularity with respect to the contested NCOER.

5.  The evidence of record shows the applicant failed to file a timely appeal within the 3-year time restriction for the submission of substantive appeals.

6.  By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 2166-8 filed in the performance folder of his OMPF is untrue, in error, or unjust.  Therefore, the DA Form 2166-8 is deemed to be properly filed and should not be removed from the applicant's OMPF nor should the period of the report be declared non-rated.  As such, there is no basis for granting a Standby Advisory Board.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

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